Privacy Commissioner & Emerging Controversy over Appointment
Thursday, May 29, 2014 at 6:40AM
Craig Forcese in Chapter 04: Unelected Officials

On May 29, 2014, the Prime Minister announced his pick for the next Privacy Commissioner, an officer of Parliament post under the Privacy Act.  The nominee, Mr. Daniel Therrien, is a career Justice lawyer presently serving as an Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice.  The official opposition reacted negatively to the PM's nomination, and called on the PM to reconsider Mr. Therrien.

In this post, I rehearse the legal issues tied to appointment of the Privacy Commissioner.  Under the Privacy Act, the Commissioner is appointed by the Governor in Council, "after consultation with the leader of every recognized party in the Senate and House of Commons and approval of the appointment by resolution of the Senate and House of Commons".

In the following extract from Laws of Government (at 242), Freeman and I trace past controversy over the appointment process, flowing from the resignation in 2003 of the then-commissioner:

[Some MPs] questioned a process in which Parliament was asked to “rubber-stamp” a government-selected nominee, without vetting fully alternatives:

I am sure that there are Canadians who would have been great nominees. Parliament could have had some role in short listing them and suggesting to the government that it select from half a dozen people. This would have been a much more meaningful process and would have helped, in the public’s mind, to reduce the cynicism about parliament being a rubber stamp for things that are decided elsewhere. Let us not kid ourselves. This was clearly decided elsewhere.[1]

...[T]he controversy [surrounding the Privacy Commissioner in 2003] prompted the Commons Standing Committee on Government Operations and Estimates to recommend to the Commons a study of officers of Parliament appointments.[2] In its words, “[t]he appointment processes that currently apply to privacy commissioners and other officers of Parliament may be deficient. The imbalance, in practice, between the respective roles of the Governor in Council and Parliament in such appointments warrants examination.” As a consequence, the committee recommended a comprehensive review of officers.[3]

The subsequent standardization of the appointment process for most officers of Parliament made by the 2006 Federal Accountability Act arguably increases parliamentary scrutiny of candidates.  Not least, approval of these candidates by Parliament is preceded by a process in which the GIC consults with the leaders of the official political parties in Parliament on the candidate.  This last innovation – something that was not required under prior versions of the statutes governing most officers – presumably means that opposition politicians turn their minds more actively to the identity of candidates than was the case when candidates were simply presented to Parliament as a whole for approval by the government.

 

What Parliament did not enact were ground rules on the credentials and expectations that might guide selection of candidates.  That means that the issue remains high politics (or low politics, depending on your perspective).

While I have seen no reporting on the issue, my assumption is that the Prime Minister did consult with Messieurs Mulclair and Trudeau before announcing his nomination.  My assumption is that Mr. Mulclair did voice his concerns during that consultation, which the PM has now rejected.  The matter will now be decided by the senate and House of Commons, and each will need to pass a resolution approving the appointment.  The government enjoys a majority in both houses, and can secure passage of the resolutions.  Along the way, however, there is risk of acrimonious political debate.

There would be considerable virtue in clearer expectations on the qualities nominees should possess.  And there would also be considerable virtue in party leaders hammering out consensus on such matters behind closed doors.  Contentious nominations visit unfairness and significant collateral damage on people who deserve much better, and risk tarnishing the institutions which appoint and to which they are appointed.  The Justice Nadon matter is an obvious case in point. Controversy over SCC appointments has likely put blood in the water in relation to similar matters.  We seem, in Canada, to be entering our "Robert Bork era". 

 


[1] Mr. Bill Blaikie (Winnipeg–Transcona, NDP), Hansard, no. 124, 36th Parl., 2d Sess. (28 Sept. 2000).

[2] Commons Standing Committee on Government Operations and Estimates, Matters Relating to the Office of the Privacy Commissioner at 18–19.

[3] Ibid.

 

 

Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice - See more at: http://pm.gc.ca/eng/news/2014/05/28/pm-nominates-next-privacy-commissioner#sthash.Ei0BA68E.dpuf
Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice - See more at: http://pm.gc.ca/eng/news/2014/05/28/pm-nominates-next-privacy-commissioner#sthash.Ei0BA68E.dpuf
Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice - See more at: http://pm.gc.ca/eng/news/2014/05/28/pm-nominates-next-privacy-commissioner#sthash.Ei0BA68E.dpuf
Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice - See more at: http://pm.gc.ca/eng/news/2014/05/28/pm-nominates-next-privacy-commissioner#sthash.Ei0BA68E.dpuf
Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio, at the Department of Justice - See more at: http://pm.gc.ca/eng/news/2014/05/28/pm-nominates-next-privacy-commissioner#sthash.Ei0BA68E.dpuf
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